NSWCCL made a submission to the NSW's Committee on the Independent Commission Against Corruption regarding the Review of aspects of the Independent Commission Against Corruption Act 1988.

The risk of corruption is deeply concerning because, if not effectively checked, it threatens our democratic values and processes – including the rights and liberties of free and equal persons. This is why we support a strong and effective ICAC, appropriately constrained by safeguards for individual liberties and rights that are compatible with operational effectiveness.

The TDI Bill was tipped to be tabled earlier this year, having largely slipped under the radar. NSWCCL has concerns that this Bill lacks some important privacy safeguards.

Background

The Australian government recently consulted the community on the draft Trusted Digital Identity Bill 2021 (Bill), a package consisting of a Trusted Digital Identity System (TDIS) and the Trusted Digital Identity Framework (TDIF).  The draft Bill encompasses a federal accreditation framework for Digital Identity services which will enable the States and Territories and the public and private sector to use the TDIF and TDIS to verify the identities of people and businesses they deal with online. It also sets out the requirements that applicants need to meet to achieve accreditation. 

Currently, Australia Post, the ATO and OCR labs have been granted accreditation. The Australian Government is accrediting a number of other businesses under the TDIF as a part of testing the readiness of the Australian Government Digital Identity System to expand beyond the Australian Government.  As of this post, the Bill is yet to be introduced into parliament.

NSWCCL made a joint submission with the Australian Information Industry Association to the Joint Standing Committee on Treaties Inquiry into the Agreement between the Government of Australia and the Government of the United States of America on Access to Electronic Data for the Purpose of Countering Serious Crime under the CLOUD act.

The Social Media (Anti-Trolling) Bill 2022 is a deeply concerning development because it is really about making reforms to defamation laws in ways that could particularly favour politicians and others with sufficient resources to pursue defamation remedies, and not about reducing trolling or the damage caused by trolling. 

Update: The Privacy Act Review Report was released on 16 February 2023. NSWCCL was pleased to see that many of the recommendations the Council made in our submission were supported in the review.

A key recommendation in the review is ensuring the collection of, use and disclosure of personal information is fair and reasonable, including whether the “impact on privacy is proportionate to the benefit”. The Council supports the inclusion of non-exhaustive legislated factors that are relevant to determining whether the collection, use, or disclosure of personal information is fair and reasonable in the circumstances. However, it considers that clear guidance and examples of how these factors may apply in practice must be provided.

The standard of ‘fair and reasonable’ must be assessed by reference to the perspective of the individual, rather than being assessed from an APP entity’s perspective. We consider that having clear guidance from the outset, rather than waiting to see how the courts interpret such new provisions, will empower APP entities to appropriately assess whether any proposed data collection, use or disclosure would be unfairly prejudicial to, or unreasonable having consideration to the expectations of, the individual. In particular, to the extent that these factors do require consideration of what is ‘fair and reasonable’ from the perspective of the individual, the APP entity should be required to consider and satisfy each factor. This is because the protection of personal information and right to privacy should be fundamental to the Act, and should not be readily outweighed by business considerations.

The review has also proposed “direct right of action” that allows individuals to seek compensation in the Federal Court for a breach of privacy, which privacy advocates have long called for. To access the action, a claimant would first need to make a complaint to the Office of the Australian Information Commissioner (OAIC).

The Council supports the creation of a direct right of action. The NSWCCL considers it important that individuals can personally litigate a claim for breach of their privacy under the Privacy Act. However, the ability of individuals to do so is currently limited. The creation of a direct right of action would therefore give individuals greater control over their personal information by providing an additional avenue of redress under the Privacy Act. This, in turn, would encourage better compliance by APP entities of their privacy obligations under the Act.

However, the expansion of the OAIC’s funding is critical given that several proposals contained within the Discussion Paper involve the broadening of the OAIC’s current remit. Chronic underfunding will erode the effectiveness of any privacy protections the OAIC seeks to implement and support. To properly conduct both its existing and proposed activities, the OAIC must be adequately funded and consulted in respect of the resources it requires. The OAIC received limited funding to support its privacy initiatives in the 2021-2022 Federal Budget, despite a significant expansion in its activities with the onset of its Digital Economy Strategy.

NSWCCL made a submission to the Review of the Privacy Act 1988 advocating for urgent reform to modernise the Act and ensure it is fit for purpose in the digital economy. Privacy is a fundamental human right that is central to the maintenance of democratic societies and achieving respect for human dignity. In this regard, the NSWCCL submits that the right to privacy should be the paramount object of the Act and considers the two primary areas of concern in debates relating to privacy are:

NSWCCL recently wrote to the Attorney General to comment on the exposure draft of the Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021 (Online Privacy Bill).

A transcript of NSWCCL President Pauline Wright's speech to the National Press Council on 1 December 2021.

As a civil liberties organisation, NSWCCL has in the past expressed serious reservations about anti-corruption agencies sitting outside the established justice system and wielding extraordinary coercive and covert powers. But we have cautiously shifted our position in response to the growing threat that increasingly complex forms of corruption pose to the public good in Australia. If the public interest is to be protected against the corrosive effects of serious lapses in integrity and systemic corruption, NSWCCL acknowledges that the establishment of anti-corruption agencies equipped with extraordinary investigative powers – albeit with proper constraints and safeguards – is both necessary and proportionate.

Corruption undermines the integrity of our political system. It distorts the policy-making process, diverts resources from public good objectives and undermines public trust in our politicians, governing institutions and public administration. Corruption harms everyone. It breeds inequality and injustice and undermines the ability of governments and people to fulfil their potential to achieve the common good, especially in challenging times.

Freedom of Information laws are crucial to ensuring the transparency and accountability of policy and government decision making by giving Australians access to the information they need to participate fully in democratic processes.

However, systemic deficiencies in the federal FOI regime, including the existence of broad exceptions under the Freedom of Information Act 1982 (Cth) and persistent underfunding of the Office of the Australian Information Commissioner (OAIC), have eroded the effectiveness of the FOI regime, shielding politicians from public scrutiny and undermining public confidence in the integrity of government and public institutions.

On 1 November 2021, NSWCCL made a submission to the Inquiry into the Public Interest Disclosures Bill 2021. The Bill re-writes protection for public officials who blow the whistle on wrongdoing, following a 2017 Joint Parliamentary Committee review that recommended a complete rewrite of the existing legislation.

NSWCCL endorses the Bill, which we note adopts nearly all the recommendations from the 2017 report, while noting some shortcomings.

The recent deletion of freedom of information requests relating to Christian Porter’s ‘blind trust’ by the Department of Industry, Science, Energy and Resources has highlighted important gaps in Australia's freedom of information regime.

Under long-standing freedom of information laws, pending requests can be deleted when a minister leaves their role, creating a loophole for scandal-plagued ministers to avoid scrutiny.